Rebecca A. Bowman, PE, Esq.
Ah, but it’s not what you think. I’m not talking about disputes – although that would make a good topic for next quarter. I’m talking about conflicts of interest. We’re going to walk through a case study. It’s a true situation, but I’ve changed the names and enough of the details to make it generic.
As you know by now, I do a lot of construction defect litigation work. I have a cadre of experts on whom I regularly call. We know and trust and respect each other. We value each other’s integrity and forthrightness.
Last year, I picked up a case from a colleague, when it got to be more than he could handle. To save money, the property owner obtained an expert report from a family relative (who was nominally qualified). That report was used as the basis for the original complaint. By the time the case was transferred to me, we were scheduling a trial. When I called to review the expert report with that family relative/expert, he advised me that he never had any intention of appearing to testify and, in fact, would not make himself available for the trial.
[Sidebar civility lesson: do not prepare an expert report if you are not willing to follow through with testimony. Another expert cannot testify to your report, but must prepare his/her own, doubling the expense to your client. Even if you disclosed your unwillingness up front, there are way too many clients who would not understand the implications and way too many attorneys who would not think through the implications. Such action may not rise to the level of malpractice or technically be a violation of the Professional Rules, but it’s really, really bad form – creating bad feelings and disrespect toward the profession.]
Now this was enough of a problem, but it was not all. A week before the trial, I was in court seeking the court’s permission to substitute experts and to substitute expert reports, which put me at a real disadvantage in presenting my client’s case. Over my opponent’s objections, my request was granted, although the judge told me that I could use the family relative/expert even though he wasn’t licensed in Pennsylvania — that the judge would simply give his testimony the weight it deserved. (In case you don’t know, those are words of doom coming from a judge.) However, I really didn’t want to disclose the totality of my situation to the judge, so I simply argued that as a professional engineer myself, I did not want to place a fellow engineer in an awkward position.
So now I had a week to find an expert, get him/her out to the (somewhat remote) site, obtain a report, file it with the court, and serve it on my opponent.
There’s a wall plaque I’ve seen several times over the years: “Lack of planning on your part does not create an emergency on my part.” Embrace that. Take the time to handle the intake process carefully and completely.
From among my cadre of trusted professionals, I selected the most appropriate expert. We’ll call him Terry. I telephoned and explained my situation in general terms. Terry agreed to work within my incredible schedule constraints and immediately kicked into gear. Terry completed the site visit on a Saturday and sent me a draft report on Monday. God bless Terry for the effort. I will always be appreciative.
However, what do you not see above? A conflict of interest check.
As Paul Harvey used to say, here’s the rest of the story. Back before I was involved, my clients had originally sued about a dozen parties, all but one of whom had been dismissed out of the case. One of those dismissed parties had contacted another engineer in Terry’s office back then. We’ll call him Steve. The matter never went anywhere because that party was dismissed out. There was no retainer agreement and no files were transmitted. So far, we still may not have a problem, right?
Ah, but of course, there’s more. My opponent had also contacted Steve from Terry’s office. Only the files on the public record had been transmitted to Steve at that time. When Steve realized that this was the same case about which the dismissed party had contacted him, he declined the representation and returned the files. Through that process, he had never met my clients, never seen photographs of the site, never been to the site, and had done nothing more than have an intake telephone call with my opponent and receive the files. No retainer agreement was entered into with my opponent and Steve did not retain the files or copies of the files, because Steve had declined the representation.
Now, here I come. When I served Terry’s report on my opponent, he immediately filed a motion with the court to prevent me from using Terry as my expert. The basis of his argument was that, if Terry’s firm was conflicted out of working with my opponent because of the contact with the dismissed party – who was on the same side of the issue as my opponent, then he and every other member of his firm were CERTAINLY conflicted out of working with me on the other side. The judge agreed.
Literally hours before the trial is scheduled to begin I am without an expert and without an expert report. I requested more time. Because my opponent had raised the objection, the judge agreed to give me more time. The case settled. Everything is right with the world, don’t you agree? Not really. Because the judge refused to accept Terry’s report on behalf of my client, Terry didn’t get paid.
Make certain that a relational database exists in your office including all parties, all party representatives, and all other experts. Enter all conversations with even potential clients into that database. Before initiating ANY conversation with a potential client, complete a thorough conflicts check. No matter how hungry you are for work, don’t enter into a retainer agreement where there is a conflict. Even if you disclose a conflict and the client is willing to move forward and accept the risk of rejection by the court, that’s fine when that risk is hypothetical and not fine when it’s a week before trial.
If you don’t have a system and a methodology and a policy for conducting conflicts checks before entering into a retainer agreement, you are conducting a Risky Business.
Rebecca A. Bowman, Esq., P.E. is the principal of a woman-owned business in civil engineering, dispute resolution, real estate, and legal services. She is experienced in boundary law issues, engineering design and forensic analysis, construction/project management, dispute resolution, real estate, and small business start-ups. She is a registered professional engineer and a certified arbitrator, mediator, and Christian conciliator. Mrs. Bowman writes a column for the PE Reporter, “Risky Business”. She is frequent CPE lecturer (law and engineering) for a variety of providers. She received her B.S. degree in civil engineering, from the University of North Dakota, her M.B.A. degree from Oklahoma University and her J.D. degree from Duquesne University. Mrs. Bowman is involved with the National Society of Professional Engineers, the American Arbitration Association, the Institute for Christian Conciliation, the Financial Industry Regulatory Authority, and the American Bar Association. She volunteers with Legal Aid, Family Promise, the Pregnancy Resource Center of the South Hills, MATHCOUNTS, and Pennsylvania History Day. She received the 2014 PSPE President’s Distinguished Service Award.